UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-30919 Summary Calendar _____________________

GREGORY JOHNSON,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee. _________________________________________________________________

Appeals from the United States District Court for the Eastern District of Louisiana (98-CV-713-B) _________________________________________________________________

September 20, 1999

Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Gregory Douglas Johnson, Louisiana prisoner # 108327, appeals

the denial of

habeas relief. With respect to the

sole issue on which a certificate of appealability was granted,

Johnson contends that a minute entry in the state court record,

reflecting that he had waived his right to trial by jury, is

insufficient to establish that the waiver was knowingly and

intelligently made.

The state court addressed Johnson’s claim on the merits,

holding that he had waived his right to a jury trial and that the

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. trial court’s failure to advise him of that right was harmless

because he had not alleged that he was unaware of the right. The

state court ruled, however, as a matter of state, not federal,

law.

The effectiveness of a waiver of a federal constitutional

right is governed by federal law. Boykin v. Alabama,

(1969). Although there may be subsidiary questions of fact,

whether the waiver of Johnson’s right to a jury trial was knowing

and voluntary is ultimately a legal determination. Cf. Marshall v.

Lonberger,

(1983) (voluntariness of state

prisoner’s guilty plea is question of law but historical facts are

entitled to presumption of correctness); Barnes v. Johnson,

(5th Cir. 1998) (voluntariness of accused’s

confession is ultimately a legal determination, but the

determination may involve subsidiary factual determinations), cert.

denied, ___ U.S. ___,

(1999). Therefore, under the

standards of review provided by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), this court must respect the

state court’s determination so long as it was not “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States”.

(d)(1).

The right to a jury trial in a criminal case is a fundamental

constitutional right. Duncan v. Louisiana,

(1968). That right may be waived by the defendant, but the waiver

must be express and intelligently made. See Singer v. United

- 2 - States,

(1965); Patton v. United States,

(1930); Mills v. Collins,

, 93 & n.4 (5th

Cir. 1991) (recognizing continuing validity of Patton with respect

to requirement that a federal or state court must obtain a knowing

and intelligent waiver of the right to a jury trial). Whether

“there is an intelligent, competent, self-protecting waiver of jury

trial by an accused must depend upon the unique circumstances of

each case”. Adams v. United States ex rel. McCann,

(1942).

The waiver of important constitutional rights, including the

right to trial by jury, may not be presumed from a silent record.

Boykin,

; Dulin v. Henderson,

(5th Cir. 1971). “The record must show, or there must be an

allegation and evidence which show, that [the waiver was]

intelligently and understandingly [made].” Boykin,

. In general, a minute entry will not provide any insight into

how, or in what way, a defendant had been advised of his

constitutional rights. Moran v. Estelle,

(5th

Cir. 1979).

Johnson has consistently alleged that he did not understand or

appreciate his right to a jury trial. The discussion in Patton,

Boykin, and their progeny reflects that mere awareness of a federal

constitutional right is not enough; instead, the waiver must be

intelligently and knowingly made. As in Moran and Dulin, the

minute entry in the instant case, standing alone, fails to

establish how, and in what way, Johnson was advised of his right to

- 3 - a jury trial. Accordingly, the state court’s determination that

Johnson knowingly and intelligently waived his right to a jury

trial involves an unreasonable application of established federal

law. The judgment of the district court is therefore VACATED, and

the case is REMANDED for further proceedings. Dulin,

.

VACATED and REMANDED

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